The State Bar seeks public comment on amendments to California Rules of Professional Conduct 1.2 and 8.4 and on a new rule, 8.4.2.
Deadline: March 1, 2023, 11:59 p.m.
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
To increase civility in the legal profession, the State Bar is proposing several amendments to the California Rules of Professional Conduct based on recommendations provided by the California Civility Task Force and the State Bar Committee on Professional Responsibility and Conduct. These changes would clarify that a lawyer may be disciplined for incivility and provide a new basis in the rules for discipline.
There are three changes being proposed to the Rules of Professional Conduct:
First, the rule concerning allocation of authority between an attorney and client would be amended. Rule 1.2 Comment [1], as modified, clarifies that a lawyer has the authority to conduct themselves with civility, even if their client directs otherwise, so long as the lawyer does not prejudice the rights of their client.
Second, the misconduct rule would be amended. Comment [4] would be amended to provide a cross-reference to the proposed new standalone rule, rule 8.4.2. Comment [6] would be amended to provide guidance that certain uncivil conduct violates rule 8.4(d), which provides that it is misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Specifically, Comment [6] states that significantly unprofessional conduct that is abusive or harassing in the practice of law or related professional activities would violate rule 8.4(d). Comment [6] also provides examples of conduct that would not violate rule 8.4(d). Comment [6] directs lawyers to consult the current California Attorney Guidelines of Civility and Professionalism and other applicable civility authorities.
Finally, a new standalone rule, rule 8.4.2, is being proposed. Subparagraph (a) of the proposed rule states that a lawyer shall not engage in incivility in the practice of law or related professional activities. Subparagraph (b) defines incivility as significantly unprofessional conduct that is abusive or harassing and determined on the basis of the facts and circumstances surrounding the conduct. Additionally, new rule 8.4.2 includes five clarifying comments that direct lawyers to consult the current California Attorney Guidelines of Civility and Professionalism and other applicable civility authorities, provide examples of conduct that would not violate the rule, indicate that a violation of this rule may also constitute a violation of 8.4(d) or other authorities, and that the rule does not apply to conduct protected by the U.S. or California Constitutions.
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Board of Trustees
March 1, 2023, 11:59 p.m.